A lot of us have argued that one of the floodgates for telemedicine has been reimbursement. If states and the Federal government more liberally reimbursed or required reimbursement for telemedicine service, we argue then a significant barrier to broader telemedicine will be removed. This is a valid argument, and the potential flurry of activity on Capitol Hill as of this writing (September 20, 2017) gives many hope that Medicare reimbursement for telemedicine may be greatly expanded soon.

Alas, another problem persists. A spate of recent surveys and reports on utilization demonstrate that awareness should be viewed as a similar sort of barrier. It is, of course, a generalization to say this, but consumers are largely unaware of the benefit being made available to them, or are unaware of the appropriate uses of a telemedicine service. It would be foolish to speculate as to the reasons why, but a recent trend may help to erode this barrier.

When it comes to customer service and user engagement, none are better than our technology industry. The West Coast tech giants clearly understand how to engage and attract users. The remarkable success of smart phones provides ample evidence—can you think of any other consumer product of comparably high-cost being as ubiquitous? It is also clear that the health care industry has failed to engage consumers as effectively. There are likely multiple reasons for this. Health care is: (1) highly regulated, resulting in limited ability to be quickly responsive to consumer demands; (2) run by professionals trained in many things, but not sales or consumer satisfaction and engagement; and (3) burdened both by a lack of competition at the point of sale, and by a third-party payment system that has so far proven to be impervious to the forces of disintermediation. Continue Reading The Way Forward for Telemedicine

The Enhanced Nurse Licensure Compact (Compact) has now been adopted by 26 states, which means the Compact will be taking effect on January 19, 2018. Nurses who seek to practice telemedicine and deliver in-person care across state lines and who meet the Compact’s licensure requirements in these states will have one less obstacle to overcome going forward.

The Compact is an updated version of the original compact allows for registered nurses (RNs) and licensed practical/vocational nurses (LPN/VNs) to have one multistate license, which will enable them to practice nursing in person or via technology (e.g., videconference) in both their home state, as well as the other Compact states. Development and implementation of the Compact was not an easy feat, given the need for alignment of licensing standards across the Compact states, including federal and state fingerprint-based criminal background checks.

The 26 states participating in the Compact as of today are Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Iowa, Kentucky, Maine, Maryland, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

For more information about the Compact, please visit: https://www.ncsbn.org/11070.htm.

As one of the last states to retain highly restrictive (and arguably anti-competitive) telemedicine practice standards, health care providers, regulatory boards, technology companies, payors and other stakeholders have been actively monitoring Texas’ approach to telemedicine regulation and the related Teladoc case. Texas has eliminated its most restrictive requirement for delivering care via telemedicine in Texas, increasing opportunities for providers to reach patients using technology.  Senate Bill 1107 was passed on May 11, 2017, and the House added an amendment in passing Senate Bill 1107, which was approved in the Senate on May 18.  The bill was signed into law by Governor Abbott last weekend.

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Utah is one of the many states that started off 2017 with proposals to change its existing telehealth laws and regulations. Proposed Utah HB 154 (the Proposed Bill), endorsed by Ken Ivory and Allen Christensen, amends the regulatory infrastructure for telehealth, with a focus on mental health. Two of the key components of the Proposed Bill are listed below:

  • The Proposed Bill creates a scope of telehealth practices within the Utah Health Code. Under the scope of practice requirements, any provider using telehealth to provide care will be held to the same standard of care as that applicable to in-person care. In addition, the Proposed Bill stipulates that a provider may not prescribe using telehealth unless the provider has obtained the patient’s relevant clinical history and documented the relevant clinical history and current symptoms. The provider must also be available for follow-up care and familiar with available medical resources near where the patient was located during the telehealth consult.
  • The Proposed Bill enacts a new provision to the Utah Medical Assistance Act specifically enabling the provision of mental health services—treatment of mental conditions that are approved in the DSM-V—via telehealth technologies. This provision of the Proposed Bill is Utah’s attempt to increase access to behavioral and mental healthcare services in Utah. In particular, the DSM-V addresses substance abuse disorders as mental health disorders, and the telehealth provision will enable providers to help treat addiction using telehealth services where treatment facilities may not otherwise be available. Importantly, the Proposed Bill’s Medical Assistance Act amendment applies to any managed care organization that contracts with Medicaid, or any provider who is reimbursed under the Medicaid program, and requires insurers to disclose whether they provide coverage for telehealth services for mental health as part of the price and value comparison requirement under Utah law.

The Proposed Bill was passed by both the Utah House of Representatives and Senate and was enrolled on February 24, 2017. The Proposed Bill now awaits Governor Gary Herbert’s signature. If approved, the Proposed Bill will greatly expand access to health care for the mentally ill in Utah, and additionally provide more guidance to assist in the expanded use of telehealth and telemedicine services within the state.

Texas telehealth requirements will significantly change in the near future if Texas Senate Bill 1107 is passed into law, as it removes the controversial “face-to-face” or in-person consultation requirement to establish a physician-patient relationship and lawfully provide telehealth and telemedicine services within the state. This bill comes after a six-year-long battle between telemedicine stakeholders and the Texas Medical Board, and will better align Texas’ regulations with those found in other states.

Read the full article.

Arkansas currently has one of the most restrictive telemedicine environments in the country, and was one of the last states to require an in-person examination to form a provider-patient relationship. Prior to September 2016, Arkansas telemedicine laws required an initial in-person encounter to establish a valid physician-patient relationship. In September 2016, the state expanded the formation of a provider-patient relationship to include a face-to-face examination using both real time audio and visual telemedicine technology that provides information at least equivalent to the information that would have been obtained through an in-person examination.

Then, early last month, Arkansas Senate’s Public Health, Welfare and Labor Committee approved Senate Bill 146, which was signed by the Governor and became Arkansas Act 203 on February 20th, which further amended the state’s telemedicine laws to, among other things, enable patients to access telemedicine services from their home or other remote locations. The Act modified the “originating site” location requirement, redefining “originating site” to permit services to be provided wherever the patient is located at the time of the consult.  While this change has the potential to expand the use of telemedicine in Arkansas, the Act added more to its restriction on the formation of a professional relationship through telemedicine, as it states that a professional relationship cannot be formed through an internet questionnaire, email message, patient-generated medical history, audio-only communication, text messaging, fax machine or any combination of these technologies. This provision reaffirms that a patient relationship can only be formed in Arkansas with an Arkansas-licensed provider utilizing both real time audio and visual technology.

Notably, the Act also has implications for school-based telemedicine programs, which are increasing in popularity across the country. Arkansas requires school-based telemedicine programs that treat Medicaid recipients to utilize either the minor’s regular pediatrician or other primary care physician; a physician with a cross-coverage arrangement with the regular pediatrician or primary care physician; or have authorization from the regular pediatrician or other primary care physician of the minor.  (In most cases, school-based telemedicine programs require a parent’s consent for telemedicine services, and a child’s pediatrician or other primary care provider is notified after the child treated via telemedicine.) This specific provision is particularly protective of the role of treating physicians, but does not include the requirement that a parent or guardian have the power to consent to the formation of a physician-patient relationship with a minor, which is ordinarily expected.

In sum, while the law will not make Arkansas a leader in expanded access to telemedicine, it will help bring Arkansas into line with the rest of the US.

In hopes of expanding reimbursement opportunities for telemedicine services in the Medicare program, representatives of eleven payers, including Aetna, Anthem, Blue Cross Blue Shield of Tennessee, Cambia Health Solutions and Humana, asked CBO director Keith Hall in a public letter to consider their data when evaluating the impact of Medicare coverage of telemedicine services.

Medicare reimbursement for telemedicine is currently limited to very narrow set of circumstances. Section 1834(m) of the Social Security Act provides that telehealth services are covered only if the Medicare patient is seen: (a) at an approved “originating site” (e.g., physician offices, hospitals, skilled nursing facilities) that is located within a rural Health Professional Shortage Area (HPSA) that is either outside of a Metropolitan Statistical Area (MSA) or in a rural census tract, or a county outside of a MSA; (b) by an approved provider (e.g., physicians, nurse practitioners, clinical psychologists); (c) for a defined set of services, including consultations, office visits, pharmacological management, and individual and group diabetes self-management training services; and (d) using certain telecommunications technologies.

There are bipartisan efforts currently underway to expand Medicare reimbursement for telemedicine services by easing or eliminating some of these requirements. One example is the CONNECT for Health Act. Because coverage of telemedicine services in Medicare’s fee-for-service program is limited, there is limited Medicare data available for the CBO to consider when reviewing the potential financial impact of such legislation. In light of this lack of data, the insurers advise that the CBO should consider the effects that telemedicine’s expansion in the commercial market. The insurers’ letter to the CBO also points out that new alternative, quality-based payment models rely upon telemedicine as a means of meeting certain performance measures, and other government agencies, such as the US Department of Defense and the Veterans Administration, are using telemedicine services to provide better quality care.

Earlier this year, the CBO and MedPAC received a letter from over 20 different health care providers similarly urging it to consider alternative data sources, such as data from the commercial sector, when analyzing the costs and benefits associated with the use of telemedicine in the Medicare program.

On August 3, 2016, the Federal Trade Commission (FTC) staff submitted public comments regarding the Delaware Board of Occupational Therapy Practice’s proposed regulation for the provision of occupational therapy services via telehealth in Delaware (the Proposed Regulation).  The FTC’s comments to the Proposed Regulation follow its comments to Alaska’s telehealth legislation earlier this year and evidence its continued focus on telehealth’s ability to foster flexibility in health care delivery by increasing practitioner supply; encouraging competition; and improving access to affordable, quality health care.

By way of background, in 2015, Delaware amended its Insurance and Professions and Occupations Code (the Code) to include the regulation of telehealth and telemedicine services, including the delivery of occupational care remotely under existing, in-person standards of care.  Consistent with the Code, the Delaware Board of Occupational Therapy Practice (the Board) revised its rules and regulations to address telehealth services.  The Proposed Regulation defines telehealth as “the use of electronic communications to provide and deliver a host of health-related information and health care services, including occupational therapy related information and services, over electronic devices. Telehealth encompasses a variety of occupational therapy promotion activities, including consultation, education, reminders, interventions, and monitoring of interventions.”

The Proposed Regulation gives Occupational Therapist and Occupational Therapist Assistant licensees’ (Licensees) discretion in assessing and determining the appropriate level and type of care for an individual patient, provided that certain requirements are satisfied. Specifically, under the Proposed Regulation, Licensees that provide treatment through telehealth must have an active Delaware license in good standing to practice telehealth in the state of Delaware.  In addition to obtaining informed consent and complying with confidentiality requirements, the licensee must also: (1) be responsible for determining and documenting that telehealth is an appropriate level of care for the patient; (2) comply with the Board’s rules and regulations and all current standards of care requirements applicable to onsite care; (3) limit the practice of telehealth to the area of competence in which proficiency has been gained through education, training and experience; (4) determine the need for the physical presence of an occupational therapy practitioner during any interactions with patients, if he/she is the Occupational Therapist who screens, evaluates, writes or implements the plan of care; (5) determine the amount and level of supervision needed during the telehealth encounter; and (6) document in the file or record which services were provided remotely. (24 Del. Admin. Code § 2000-4.2.)

Staff of the FTC’s Office of Policy Planning and its Bureaus of Competition and Economics, responding to the Board’s request for public comments, stated that by not imposing rigid and unwarranted in-person care and supervision requirements, the Proposed Regulation could have various positive impacts, including: (1) improving access to cost-effective, quality care, especially for patients with limited mobility; (2) reducing Medicaid’s transportation expenditures as well as individuals’ pecuniary and time costs; (3) addressing anticipated workforce shortages in the health care sector by increasing practitioner supply and facilitating care of an aging population; and (4) enhancing competition, consumer choice and access to care.

The FTC did recommend the clarification of the Proposed Regulation on the scope of practice of Occupational Therapist Assistants.  The determination of the appropriateness of remote care and decisions about the amount and level of supervision during a telehealth encounter are expressly restricted to Occupational Therapists, while all other requirements also apply to Occupational Therapist Assistants.  The FTC noted that the ambiguities regarding the role of Occupational Therapist Assistants in telehealth evaluations and the determination of whether to use telehealth could discourage their participation in telehealth care.

The integration of technology into health care delivery is exploding throughout the health industry landscape. Commentators speculating on the implications of the information revolution’s penetration of the health care industry envision delivery models rivaling those imagined by celebrated science fiction authors, and claim that the integration of information technology into even the most basic health care delivery functions can reduce cost, increase access, improve quality and, in some instances, fundamentally change the way health care is delivered.

These visions are difficult to refute in the abstract; the technology exists or is being developed to achieve what just a few years ago seemed the idle speculation of futurists. But delivering this vision in an industry as regulated as health care is significantly harder than it may seem. While digital health models have existed for many years, the regulatory and reimbursement environment have stifled their evolution into fully integrated components of the health care delivery system.

Continue Reading Digital Health: An Improving Environment for Investors